Leverage has recently been dealing with a case where the tenant has sued the owner and the agent for negligence. The allegation is that the owner didn’t properly secure the property after routine inspection and that led to a burglary.

Without dealing with the facts, the interesting part of this case is, what does the agent do?

Usually, the agent represents the owner or the owners corporation in a court of law. The applicants before NCAT were quite clever and asked the agent whether they were representing themselves or the owner.

If the agent is the person at fault, the owner is able to cross claim against the owner. This means that an agent who is representing the owner as a means of protecting his or her own mistake, is in a position of conflict. The only way an agent can represent the owner is if the owner or the owners corporation state that they believe the agent is no liable. In a property management case, owners would, quite probably, be happy to indicate that the agent is not liable and allow the agent to represent them to save costs.

When dealing in an owners corporation or strata manner, because of the quantum of damage, which is normally involved, the owners corporation would probably not give that waiver of rights to the agent. The owners corporation would be represented by one solicitor and the agency would need to be represented by another solicitor.

Hence, if you are a property manager representing an owner and the complaint is about you, you need to get a waiver from the owner before you can represent them in the tribunal.

This article was written by Bailey Compton, Principal Solicitor & Director at Leverage Group.

To get in touch with Bailey, please email info@leveragegroup.com.